Fitzpatrick v. St. Louis-San Francisco Ry. Co.

• Decision Date: 11 March 1957
• Docket Number: LOUIS-SAN,No. 45382,No. 2,45382,2
• Citation: Fitzpatrick v. St. Louis-San Francisco Ry. Co., 300 S.W.2d 490 (Mo. 1957)
• Parties: William J. FITZPATRICK, Respondent, v. ST.FRANCISCO RAILWAY COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 490

300 S.W.2d 490

William J. FITZPATRICK, Respondent, v.ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Appellant.

No. 45382.

Supreme Court of Missouri, Division No. 2.

March 11, 1957.

Motion for Rehearing or to Transfer to Court en Banc Denied

April 8, 1957.

James L. Homire, W. W. Dalton, Laurance M. Hyde, Jr., St. Louis, for appellant.

Hullverson & Richardson, St. Louis, for (plaintiff)respondent.

STORCKMAN, Judge.

The plaintiff, a brakeman employed by the defendant, brought this action under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. to recover damages for the loss of his right eye.The jury found for the plaintiff and assessed his damages at $45,000.Defendant's motion for new trial was overruled on the condition that the plaintiff remit the sum of $15,000, which was done.Defendant has appealed from the plaintiff's final judgment for $30,000.

The plaintiff, 60 years old, married and living at Springfield, Missouri, began working for the defendant railroad on August 16, 1916.On August 17, 1954, he was working as a brakeman and baggageman on a run scheduled to leave Springfield at 3:05 a. m. and to arrive in St. Louis at 8:10 a. m. It was a part of his duties to watch for train order signals at various signal or order boards along the way.If there was an order it was his duty to take it aboard, usually by means of a hoop, and execute it.Also he was required to inspect the moving train on curves by looking out to see if there were any 'hot boxes' or brake beams dragging.

The railroad mileposts are numbered westward from St. Louis.At milepost 69, west of Sullivan, the plaintiff was looking out of the south door of the baggage car and forward to see the position of the train order signal at milepost 68, which was a mile east.The baggage car was next to the engine, which consisted of two diesel units.The time was about 6:33 a. m. Plaintiff testified that he was supposed to keep his head out and continue looking until he got by the signal.While he was in this position he got his 'eyes full of rock dust at mile 69' which 'just came up from piles of ground rock that was placed along there for ballast.'The train was traveling at least sixty miles per hour and the dust was 'just whipped up from the velocity of the train.'He got a whole lot more of the dust in his right eye than in his left one.He then went into the coach, held his eye open, and 'let the water and tears wash it out.'It hurt and 'stung bad.'

In Pacific, at the third crossing west of the station, he got dust in his eyes again.On this occasion he was in the vestibule of the streamlined coach at the head end looking out of the north side of the train in order to see the train order signal and 'again it got more in the right eye than it did in the left eye.'He'had a good charge' in Pacific, a whole lot more than he got 'in these other places.'When the train got east of Pacific plaintiff did 'that same drain job all over again' and it took about ten or fifteen minutes to get it out.

Plaintiff was wearing his glasses on both occasions.At Pacific 'it filled up underneath them glasses' and 'it was just packed in under there, packed in solid.'There wasn't anybody with plaintiff on either occasion.However, before arriving in St. Louis plaintiff had F. R. Kinney, a barkeman for the Missouri-Kansas-Texas Railways, look into his eye and help him clean his face.His eye was hurting at the time.Kinney testified that while he did not help the plaintiff clean his face, he did look into plaintiff's eye but 'couldn't see anything' although the eye was bloodshot and red.

Plaintiff did not seek medical attention when he arrived in St. Louis although he was a member of the Frisco Employee's Hospital Association which maintained a hospital and dispensary there.He didn't think it was necessary; he didn't consider it serious at the time.Plaintiff left St. Louis on the return run about 5:30 p. m. and on the way his eye 'got to hurting and got sensitive to light.'When he arrived in Springfield at 11:26 p. m. he got from the yardmaster a 'hospital slip' evidencing his employment by the railroad and his eligibility for medical treatment and hospitalization.The next morning he went to the office of Dr. W. J. Marshall and it was discovered that plaintiff was afflicted with an ulceration or corneal abscess of his right eye.Despite constant treatment the condition of the eye became steadily worse until the contents ruptured through the ulceration and the sight of the eye was lost.Plaintiff's right eye was eviscerated on September 11, 1954, and he was furnished with an artificial eye.He had been given a physical examination by the defendant about eleven days before he got the dust in his eyes.Other essential evidence will be discussed during the course of the opinion.

Plaintiff has not filed a motion to dismiss the appeal but in his brief strenuously contends that we should order such dismissal for failure to comply with supreme Court Rule 1.08, 42 V.A.M.S.The attack is leveled at appellant's statement and some of the points relied on.An extended discussion of the complaint is unnecessary.It is sufficient to say that the statement adequately presents the facts, especially in view of respondent's right to make an additional statement as was done.Supreme Court Rule 1.08(c).The points attacked, taken in conjunction with the argument thereon, sufficiently advise the court of the questions presented for review.The penalty of dismissal is a drastic one and should not be invoked unless fully warranted.De Mayo v. Lyons, 358 Mo. 646, 216 S.W.2d 436.We will consider the appeal on its merits.

Defendant's first contention is that plaintiff did not make a submissible case because negligence and proximate causation were not shown.Plaintiff's case was submitted in the conjunctive on two theories of negligence: one was that the 'inherently dangerous conditions to the performance of plaintiff's duties could have been remedied by removing, leveling and tamping the 'piles' of ballast at milepost 69 and by hard surfacing the third crossing west of Pacific, Missouri; the other was that the injury could have been prevented by furnishing plaintiff with goggles without cost to him.

Plaintiff testified that about four months before August 17, 1954, around twelve or fifteen carloads of ballast were dumped 'all along the outside and in the center and everywhere else' and not smoothed out.A passing train 'would form a suction of dust there, a bad one.'At other times 'when there was no chat dumped out like there was on this occasion' there would not be any particular difficulty with dust.The plaintiff complained on three occasions to the conductor who was in charge of the train about the dust conditions at milepost 69 and at Pacific.The first was in June and the last about ten days before the accident.Nothing was done about the conditions.A crushed rock country road crossed the railroad near milepost 69 and plaintiff did not know whether the dust 'blowed off of that or blowed off of the right of way.'There was a severe drouth in this area in 1954; in the words of the plaintiff, 'we sure had a bad one.'

One other witness testified for plaintiff as to conditions at milepost 69.She was Gussie Sappington who, with her husband, lived about a quarter of a mile west of the Sullivan station.She and her husband knew the plaintiff and customarily waved at him as the train went by.Between March and August 17 the condition around milepost 69 'was bad for dust.'When the train went by 'the dust and dirt would circle and go up in the air.'For several years the company had been working on the track and dumping chat.It was just dumped in piles along the track.The condition she described 'was present then and is now.'It is 'maybe worse as far as the fog and dust are concerned.'

Defendant's evidence as to conditions at milepost 69 was largely consistent with that of the plaintiff.It tended to show that the last chat applied in that vicinity was on March 11, 1954.At that time more than twenty carloads were dumped and it was distributed over about three-quarters of a mile.The chat ballast was put through a washing process at the mine and was loaded into the chat cars wet.After the chat was deposited on the roadbed a plow tie was used to get it off of the track and clear the rail.It was not spread uniformly and there were heavier piles at certain locations, but there were no large mounds of it off on the right of way.It was knocked off to about the end of the railroad ties but wasn't smoothed out in any way.About August 24, 1954, the defendant equalized the track ballast by shoving it out of the heavier places and making the track section uniform.If it was too heavy in one place it was smoothed out.The ballast was dressed off uniform but no tamping was done in the dressing process.In servicing a track the ties are raised and chat is tamped underneath in order to make the surface of the roadbed level.This had been done before the chat was unloaded.

This washed chat is standard ballast with the defendant railroad and other railroads in the territory.It ranged in size from birdshot to one-half inch.After the ballast was unloaded and plowed with a tie it wasn't disturbed but permitted to settle.There were rains on the roadbed during that period.Rain tends to carry the dust and small particles down and wedge them between the larger rocks.Trains passing along also have a settling effect.

The plaintiff testified that the crossing in Pacific was a double crossing 'with a lot of loose dirt and sand on it.'Frank Brocato, the street commissioner of Pacific, testified that on or before August 17 the crossing in Pacific was 'just gravel, sand, dirt, just anything * * *,' but since that time it had been blacktopped.When asked about the dust conditions at the crossing in August, 1954, the witness stated: 'It was bad,'...